Muldoon v Australian Securities and Investments Commission

REASONS FOR JUDGMENT 1 The question for consideration on the Applicants' Notice of Motion filed in Court on 10 October 2005 is whether the doctrine of public interest immunity entitles the Respondent, Australian Securities and Investments Commission ("ASIC"), to withhold six documents from production to the Applicants. A secondary issue of legal professional privilege arises in respect of the production of one of those documents. 2 The documents have been identified by ASIC as follows:- Document Number 6 Date of document: 17 June 2005 Type of document: File note of meeting prepared by Kim Holmes, Special Counsel International Directorate of ASIC Persons involved: Kim Holmes, Mathew Bastianon, Keith Inman (all of ASIC), Andrew Plummer, John Gardner and Graham Tooke (all of the UK Department of Trade & Industry) Grounds of claim: Section 130 of the Evidence Act 1995 (Cth) [but now advanced as a public interest immunity claim under the common law] Comments: Contains material that relates to proposed course of investigation, which if disclosed would prejudice ASIC's investigation. Doc ID Number: MOO949076 Document Number 7 Date of Document: 17 June 2005 Type of Document: File note prepared by Mathew Bastianon Persons involved: Mathew Bastianon, an ASIC lawyer and Project Manager Grounds of Claim: Sections 118 and 130 of the Evidence Act 1995 [but now advanced as a claim of public interest immunity at common law and as a common law claim of legal professional privilege] Comments: Note to self re legal issues and material that relates to proposed course of investigation, which if disclosed would prejudice ASIC's investigation Doc ID Number: MOO949091 Document Number 8 Date of Document: 12 July 2005 Type of Document: File note prepared by Mathew Bastianon Persons involved: Mathew Bastianon and Keith Inman Grounds of Claim: Public interest immunity as above Comments: Note to self re legal issues and material that relates to proposed course of investigation, which if disclosed would prejudice ASIC's investigation Doc ID Number: MOO949082 Document Number 9 Date of document: 25 August 2005 Type of document: Email Persons involved: From Mathew Bastianon of ASIC to Chris Owen, an investigator with the UK Department of Trade & Industry, and Mark Fletcher, a Department of Trade & Industry Lawyer (and also Kim Holmes and Keith Inman) Grounds of claim: Public interest immunity as above Comments: Contains material that relates to proposed course of investigation, which if disclosed would prejudice ASIC's investigation Doc ID Number: MOO949083 Document Number 10 Date of document: 2 June 2005 (and also 1 April 2005 and 22 March 2005) Type of document: Chain of emails Persons involved: From Mark McGinness, Executive Director of International Directorate of ASIC to Kim Holmes Grounds of claim: Public interest immunity as above Comments: Contains material that relates to the proposed course of the investigation, which if disclosed would prejudice ASIC's investigation Doc ID Number: MOO949084 Document Number 11 Date of document: 2 June 2005 (and also 1 April 2005 and 22 March 2005) Type of document: Chain of emails Persons involved: From Mark McGinness to Kim Holmes Grounds of claim: Public interest immunity as above Comments: Contains material that relates to the proposed course of the investigation, which if disclosed would prejudice ASIC investigation Doc ID Number: MOO949085 3 In an affidavit sworn 22 September 2005 Mr Bastianon has said:- "3. On 28 February 2005, ASIC commenced an investigation pursuant to section 13(1) of the ASIC Act into suspected contraventions of various sections of the Corporations Act 2001 … committed by officers or employees of Multiplex Limited … an Australian diversified property business and publicly listed company . I am the ASIC project manager assigned to this investigation. 4. … Multiplex's second largest project is the construction of the Wembley National Stadium … in London. The contract for the construction of Wembley Stadium is between Multiplex Constructions (UK) Limited, a company incorporated in the United Kingdom and a wholly owned subsidiary of Multiplex [Limited] and the UK Football authorities. 5. ASIC's investigation relates to, amongst other things, allegations of cost overruns in the Wembley project that were not disclosed by Multiplex [Limited]to its auditors, in financial statements or to the market, and that senior management and other officers of Multiplex [Limited] may have engaged in breaches of duty and other misconduct contrary to the Corporations Act." 4 Sections 19 and 20 of the Australian Securities and Investments Commission Act 2001 (Cth) empower ASIC to give written notice in the prescribed form to persons whom, on reasonable grounds, it suspects or believes can give ASIC information relevant to a matter that it is investigating requiring the persons to whom the notices are given to give to ASIC all reasonable assistance in connection with the investigation and to appear before a specified member or staff member for examination on oath and to answers questions. A notice in the prescribed form must state the general nature of the matter referred to in s19(1) of the Act and set out the effect of s23(1) and s68 of the Act. 5 A person conducting an examination is referred to as an inspector and a person appearing before the inspector is referred to as the examinee. 6 Sections 23, 24, 25 and 68 of the Australian Securities and Investments Commission Act confer rights upon examinees in relation to their examinations and the use to which statements made by them at the examinations may be put. 7 ASIC has a variety of powers of investigation. For present purposes the relevant power is to be found in s13(1) of the Australian Securities and Investments Commission Act which provides:- "13(1)ASIC may make such investigation as it thinks expedient for the due administration of the corporations legislation … where it has reason to suspect that there may have been committed: (a) a contravention of the corporations legislation … or (b) a contravention of a law of the Commonwealth, or of a State or Territory in this jurisdiction, being a contravention that: (i) concerns the management or affairs of a body corporate …; or (ii) involves fraud or dishonesty and relates to a body corporate …" 8 ASIC believes that the Applicants in the current proceedings can provide information relevant to the allegations that have been raised. 9 Instead of giving written notices to the Applicants under s19(2) of the Australian Securities and Investments Commission Act ASIC has seen fit to seek assistance from the United Kingdom Department of Trade & Industry pursuant to a Memorandum of Understanding entered into between ASIC and Her Majesty's Treasury on 28 October 1992, with a view to obtaining information and documents from the Applicants. 10 By letter dated 6 July 2005 sent by facsimile to the United Kingdom Department of Trade & Industry ASIC indicated that the information which it wished to obtain "relates to an investigation into suspected contraventions of the Corporations Act 2001 committed by officers or employees of Multiplex Limited …". 11 The request for assistance identified the First Applicant as "Director, Wembley National Stadium Project and Director on board of Multiplex Constructions (UK) Limited". The Second Applicant was identified as "Commercial Manager/Contract Administrator, Wembley National Stadium Project" and the Third Applicant as "Head of Project Management for Multiplex". 12 Whilst the position is not entirely clear, ASIC's contention would appear to be that as at 6 July 2005 each of the Applicants was a current employee of Multiplex Constructions (UK) Limited. 13 In relation to the "Assistance Sought" ASIC wrote:- "ASIC accordingly seeks the assistance of the DTI in obtaining the above persons' cooperation in relation to ASIC's investigation. Specifically, ASIC requests the DTI require the above persons to attend to answer questions or otherwise furnish information in interviews formally convened and controlled by the DTI, with ASIC officers present, and permitted to ask questions of the respective interviewees. ASIC also requests that a short hand writer or stenographer be present to record the statements made at each interview so as to enable a transcript of those proceedings to be produced. We understand that the assistance ASIC seeks is contemplated in section 83 of the Companies Act 1989 (UK), and that pursuant to that section, the DTI is able to make a joint appointment of members of ASIC's staff and a member of the UK Companies Investigation Branch in respect of the Multiplex matter." 14 The letter proceeded to identify that ASIC would like its representatives to be Mr Bastianon and a Mr Richard Vandeloo, a Senior Investigator, Enforcement for ASIC. 15 It would appear that on 9 July 2005 the UK Department of Trade & Industry responded favourably to ASIC's request for assistance. Thereafter, in a Notice dated 28 July 2005, apparently signed by the Director and Deputy Inspector of Companies in the Department of Trade & Industry, reference was made to the appointment by the Secretary of State for Trade and Industry of Messrs Owen, Bastianon and Vandeloo, referred to above, for the purpose of investigating the affairs, or any aspect of the affairs, of Multiplex Limited. The notice of appointment provided as follows:- "The Secretary of State for Trade and Industry in exercise of the powers conferred upon him by Section 84(1) of the Companies Act 1989, as amended, hereby authorises any of CHRISTOPHER HENRY OWEN, MATHEW BASTIANON AND RICHARD VANDELOO whose signatures are appended below, to exercise on his behalf all or any of the powers conferred by Section 83 of that Act for the purpose of investigating the affairs, or any aspects of the affairs, of MULTIPLEX LIMITED a company incorporated and registered under the laws of Australia with number [ABN 9600 868 7063] which is the subject of enquiries being carried out by the Australian Securities and Investments Commission, an overseas regulatory authority for the purposes of Section 82(2) of the Companies Act 1989." 16 On or about 29 July 2005 Mr Owen in purported exercise of the powers conferred upon him by s83 of the Companies Act 1989 (UK) required each of the Applicants to attend for interview at the offices of the Department of Trade & Industry. 17 By letter dated 17 August 2005 the solicitors for the First and Second Applicants wrote to Mr Bastianon confirming that the First and Second Applicants wished to provide full cooperation with ASIC's investigations into matters relating to Multiplex. The letter continued: "To that end · they are prepared to make themselves available, at their own expense, for examination by ASIC in Australia on dates as close as possible to the dates currently fixed for their interviews with DTI; and · they will comply with notices served under section 19 of the Australian Securities and Investments Commission Act 2001 requiring them to attend such examinations. We have instructions to accept service of such notices on their behalf." 18 The Third Applicant who has only become represented by the solicitors for the First and Second Applicants in more recent times has adopted a similar position. 19 In these proceedings an Amended Application was filed on 27 September 2005. That Amended Application seeks relief in respect of the decision taken by ASIC to seek information relevant to the matter that it is investigating under the Australian Securities and Investments Commission Act by securing the appointments of inter alia Mr Bastianon and Mr Vandeloo to investigate the affairs or any aspect of the affairs of Multiplex Limited in accordance with the relevant provisions of the Companies Act 1989 (UK) and the subsequent conduct engaged in by ASIC in pursuing information by means of the authorisation given by the Secretary of State for Trade & Industry under section 84(1) of the Companies Act 1989 (UK) rather than by exercising its powers under s19 of the Australian Securities and Investments Commission Act. 20 Apart from offering to return to Australia and comply with s19 Notices served upon them the Applicants have sought, as an alternative, undertakings and/or agreements from ASIC that if they submit to examination under the United Kingdom legislation, they will be afforded the same protection as if they were being examined by inspectors in Australia in accordance with the provisions of the Australian Securities and Investments Commission Act. Such undertakingsand/or agreements have not been forthcoming. In a letter dated 22 August 2005 to the solicitors for the then First and Second Applicants ASIC wrote: "… The Australian Securities and Investments Commission ('ASIC') will treat any evidence obtained in the examinations as evidence received pursuant to a request for assistance made of a foreign business regulator in connection with its investigation being carried out into suspected contraventions of the Corporations Act 2001 committed by officers or employees of Multiplex Limited. The examinations will be conducted pursuant to relevant UK legislation, including the provisions of the Companies Act 1989 (UK). In the circumstances, the obligations to which your clients are bound and the rights to which they are entitled in respect of the conduct of the examinations, and the evidence obtained in the examinations are matters in respect of which your clients ought obtain advice. In circumstances where the notices to which your clients are subject were issued by the DTI, any request by you to be present at the examinations ought to be directed to the DTI as the issuing authority." 21 In response to a further proposal advanced by the solicitors for the Applicants as recently as 29 September 2005 ASIC responded:- "Your clients' offer is rejected." 22 In an affidavit sworn 22 September 2005 Mr Bastianon has indicated that ASIC wishes the DTI to proceed with interviews of the Applicants under the Companies Act 1989 (UK) for 11 specified reasons. I must say that those reasons do not greatly impress me as powerful reasons why ASIC should refrain from seeking information and assistance from the Applicants in accordance with section 19 of the Australian Securities and Investments Commission Act rather than through the good offices of the Department of Trade & Industry in the United Kingdom, where the protection available to persons in the position of the Applicants does not appear to equate to the protection afforded by the Australian Securities and Investments Commission Act. This is especially so given that ASIC's investigation and the Department of Trade & Industry investigation are into the affairs or aspects of the affairs of Multiplex Limited, not Multiplex Constructions (UK) Limited. 23 The most that ASIC is willing to offer to the Applicants is a written acknowledgement in the following terms: "ASIC acknowledges to Christopher Ong, Ashley Muldoon and Peter Gallagher that it will not seek to use any information obtained in the course of the interviews conducted by the DTI pursuant to section 83 of the Companies Act 1989 against them in a criminal proceeding or a proceeding for the imposition of a penalty which may be brought by ASIC other than a proceeding, following the making of a statement by any of them, in respect of the falsity of such a statement." 24 The decision to approach the United Kingdom Department of Trade & Industry for assistance appears to have been taken by ASIC on or about 1 June 2005. 25 A conference call was planned for the evening of Friday 17 June 2005 in Sydney (the morning of 17 June 2005 in London) between the persons referred to in relation to Document Number 6. 26 The nature of what transpired on Friday 17 June 2005 is indicated in part by an email from Kim Holmes at ASIC to Mark McGinness at ASIC dated 29 June 2005 under the heading "Re: Proposed Travel to the UK - in the matter of Multiplex Limited". Mr McGinness had enquired as to whether the "hook-up" with the DTI ever took place. Kim Holmes responded:- "We had an hour long talk a couple of Friday nights back, covering issues such as content of request (we're not to mention fraud or penalties - smacks too much of a criminal investigation - which they don't do - rather than a fact finding mission); …" 27 Previously on 1 April 2005 Mr Callaghan at the DTI had advised Ms Holmes:- "The powers we have to investigate … are fact-finding. I assume that ASIC is carrying out a fact-finding investigation at this stage, not an investigation that would be classified as a criminal one. The route for assistance with criminal investigations is through the Judicial Co-operation Unit of the Home Office." 28 Given the terms of s13 of the Australian Securities and Investments Commission Act and the nature of the investigation being conducted into Multiplex Limited there may be a case for saying that ASIC's approach to the Department of Trade & Industry was for a colourable purpose. However, it is not for me to pass any judgment on the propriety of ASIC's decision which is the subject of the Amended Application or its subsequent conduct which is also the subject of that Application, 29 I will not set out in detail the sworn claims to public interest immunity for each of the documents in question which are contained in paragraphs 14 to 17 inclusive and 20 of the affidavit of Mr Bastianon sworn 7 October 2005. Suffice it to say, they are generally expressed in similar terms. In relation to document number 6 ASIC's objection to the production of the document is:- "on the ground of matters of state as it is a confidential document that records discussions between members of ASIC and the Department of Trade & Industry (UK) … and relates to the actual or possible course of ASIC's investigation and/or particulars of evidence that might be obtained. It would be injurious to the public interest to disclose this document and/or its contents as to do so would prejudice the investigation or prosecution of an offence, or the investigation of, or the conduct of proceedings for the recovery of civil penalties brought with respect to, contraventions of the Corporations Act 2001." 30 Each of the claims to public interest immunity concludes with the last mentioned sentence. 31 The parties agree that the relevant principles in relation to public interest immunity which are to be applied are those enunciated by Lockhart J in Zarro v Australian Securities Commission (1992) 36 FCR 40 at 45 - 46: where His Honour said: "It was decided in Sankey v Whitlam … and confirmed in Alister v The Queen … that, when one party to a proceeding seeks the production of documents and objection is taken that it would be contrary to the public interest to produce them, the court must consider two conflicting aspects of the public interest: first, whether harm would be done by the production of the documents and, secondly, whether the administration of justice would be impaired if the documents were withheld; and to decide by a balancing exercise which of these elements predominates. A balancing exercise can only be undertaken when it appears that both aspects of the public interest require consideration: 'ie when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the Public Service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation …' See Alister v The Queen, per Gibbs CJ (at 412). As was pointed out by a Full Court of this Court in Northern Land Council … (at 31), when a claim for public interest immunity is raised there may be a threshold question whether the documents in question are or may be of sufficient importance to the case that the court should undertake the exercise, which may involve their inspection, of balancing the public interest in withholding production against the public interest in the administration of justice. The nature of the balancing process and the factors relevant to deciding a public interest immunity claim were considered in Northern Land Council (at 38-39). An objection to production, even if properly taken, is never conclusive: see Sankey v Whitlam; Alister v The Queen; Northern Land Council. Objection may be taken to the production of documents because it would be against the public interest to disclose their contents or because it belongs to a class of documents which in the public interest ought not to be produced. There are documents which belong to a class which ought not to be disclosed irrespective of the contents of the particular documents because the law acknowledges that in the public interest such a class of documents should be immune from disclosure. The class includes Cabinet minutes and minutes of discussions between heads of government departments, papers brought into existence for the purpose of preparing submissions to Cabinet, and certain other documents which relate to the framing of government policy at a high level: see Sankey v Whitlam, especially per Gibbs ACJ (at 39); Conway v Rimmer [1968] AC 910 at 952, 973, 979, 987, 993; Australian National Airlines Commission v Commonwealth (1975) 132 CLR 582 at 591; Lanyon Pty Ltd v Commonwealth (1974) 129 CLR 650; Burmah Oil … and Air Canada … The extent to which this doctrine would protect from disclosure documents concerned with policy making by junior officials of government or correspondence with outside bodies is a matter on which there is divergence of judicial opinion. Although there are classes of documents which are entitled to protection from disclosure irrespective of their contents, 'no documents, however exalted their status, are completely immune from production': see Northern Land Council (at 30). Such documents may be withheld from production only when this is necessary in the public interest: see Sankey v Whitlam, per Gibbs ACJ (at 43); Northern Land Council (at 296). Although objection may in some cases be taken to production of documents because they belong to a class of documents which in the public interest ought not to be produced and although the class is not closed, it must only be in rare cases of documents at high levels of government involving matters of national importance that the class doctrine can apply. Documents within the possession of the ASC (an investigative and law enforcement agency) of a confidential nature, which record information received by it concerning possible offences or irregularities and recording the possible course of investigations or information with respect to evidence concerning proceedings to which the ASC is a party, plainly may fall within the scope of public interest immunity; but as at present advised I cannot conceive of a case where they would fall within the class doctrine and thus be immune from disclosure irrespective of the contents of any particular document. That the doctrine of public interest immunity can apply to documents in the possession of a law enforcement agency such as the ASC cannot be doubted: see Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 60; Spargos … The ASC has various roles under the Corporations Law; it is investigator, prosecutor and intervener in proceedings, both civil and criminal, and is generally responsible for the enforcement of the Corporations Law. The range of activities which it may investigate and the variety of documents which may come into its possession for the purposes of fulfilling its statutory obligation are numerous and diverse. In some cases the ASC's investigations will be conducted over long periods of time and involve large numbers of documents. Those matters all point to the conclusion that, although the doctrine of public interest immunity may apply to documents of this kind, they cannot be immune from disclosure within the class doctrine; that would be an unwarranted extension of the doctrine which has hitherto been confined to rare cases of documents involving high government policy and decision-making. It is the duty of the court to prevent the disclosure of a document the production of which would be contrary to the public interest even if no claim is made by a Minister or appropriate government official that its production should be withheld. Indeed, the myth that disclosure could not be prevented unless a claim for immunity from production was made by the executive has long since been exploded. Equally discredited is the view which previously was commonly held that public interest immunity was in truth Crown privilege: see Sankey v Whitlam and Alister v The Queen, especially per Gibbs CJ (at 412)." 32 As Gibbs CJ said in Sankey v Whitlam (1978) 142 CLR 1 at p.41: 'The fundamental principle is that documents may be withheld from disclosure only if, and to the extent that, the public interest renders it necessary.'" 33 ASIC does not contend that the documents in question attract public interest immunity because of the class to which they belong irrespective of their contents. 34 The parties are agreed that for the purposes of this application, s130 of the Evidence Act 1995 (Cth) has no application. However, it is submitted that reference should be made to subsections (4) and (5) as applications of the relevant common law principles. The Respondent relies in particular upon s130(4)(c)(d) and (e) which provide as follows:- "130(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would: … (c) prejudice the prevention , investigation or prosecution of an offence; or (d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or (e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or …" 35 On the same basis the Applicants rely upon s130(5) which provides as follows:- "130(5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters: (a) the importance of the information or the document in the proceeding; (b) if the proceeding is a criminal proceeding - whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor; (c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding; (d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication; (e) whether the substance of the information or document has already been published; (f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant - whether the direction [not to adduce evidence] is to be made subject to the condition that the prosecution be stayed." 36 Mr Gageler SC who appears with Ms Allars for the Applicants says that the Applicants want to know why the decision was made to go to London in the first place and why thereafter ASIC rejected the offers made by the Applicants to submit themselves to examination in Australia in response to notices which they have invited ASIC to serve upon them under s19 of the Australian Securities and Investments Commission Act. The Applicants further want to know why the procedure was followed of seeking the assistance of the UK Department of Trade & Industry rather than the assistance of the United Kingdom authorities in accordance with the Mutual Assistance In Criminal Matters Act 1987 (Cth) and the regulations thereunder, the Mutual Assistance in Criminal Matters (United Kingdom) Regulations 1999 (Cth). 37 Mr Lacava SC who appears for ASIC says that ASIC does not want the Applicants to know the identity of other potential interviewees. Mr Gageler has indicated that such information is not sought. 38 Mr Lacava says that ASIC does not want the Applicants to know the identity of parties called upon to produce documents. Once again Mr Gageler indicates that such information is not sought. 39 Mr Lacava indicates that ASIC does not want facts to be disclosed which would identify ASIC's informants or sources of confidential information. Yet again, Mr Gageler does not seek such information. 40 Mr Lacava also says that ASIC does not want disclosure to people such as the Applicants, whom ASIC on reasonable grounds suspects or believes can give information relevant to the matters which it is investigating, of ASIC's methods of investigation and where the investigation is going. Mr Gageler takes issue with ASIC's claim for public interest immunity in respect of the documents in question insofar as they may reveal matters touching upon the propriety of the decision taken by ASIC which is under challenge and ASIC's subsequent pursuit of a Companies Act 1989 (UK) investigation rather than an Australian Securities and Investments Commission Act investigation. 41 In the foregoing context, I have been invited by ASIC to inspect the documents in question for the purpose of determining the proper application of the doctrine of pubic interest immunity to them in accordance with the abovementioned principles. 42 In relation to the claim of legal professional privilege made by ASIC in respect of Document Number 7 I have also been invited, should it become necessary, to have regard to my inspection of that document for the purpose of ruling upon it. 43 A number of the principles in relation to legal professional privilege claims are to be found in my reasons for judgment in Seven Network Limited v News Limited [2005] FCA 864of 30 June 2005 at [32] - [43] and my further judgment in Seven Network Limited v News Limited [2005] FCA 1342of 23 September 2005 at [26], [28] - [31], [33] - [36] and [38]. See also the judgment of Allsop J in Kennedy v Wallace (2004) 213 ALR 108 at 135 [157] - [159]. 44 My rulings on the claims which have been made in respect of the six documents the production of which has been sought is as follows: Document Number 6 This is a four page manuscript note. It seems to me to be directly relevant to the issues which the Applicants wish to raise in the proceedings. Disclosure of its contents would do minimal, if any, harm to ASIC's investigation in terms of revealing ASIC's methods of investigation, where the investigation may be going or otherwise. On balance, the public interest in the administration of justice requires that ASIC produce this document (without any deletion of any part of the text as a result of inadequate photocopying) to the Applicants, Provided However that the fourth to eighth last lines inclusive appearing on the right hand side of page 1 thereof may be masked out and an edited copy of the document produced. Document Number 7 This is a one page manuscript note. It seems to me to be directly relevant to the issues which the Applicants wish to raise in the proceedings. Disclosure of its contents would do minimal, if any, harm to ASIC's investigation in terms of revealing ASIC's methods of investigation, where the investigation may be going or otherwise. On balance, the public interest in the administration of justice requires that ASIC produce this document to the Applicants, Provided However that if the word appearing at the end of the second line against the word "witnesses" is, as I suspect, the name of a potential witness, that name may be masked out and an edited copy of the document produced. This document could not possibly attract legal professional privilege in the light of the principles to which I have referred. Document Number 8 This is a one page File Note. It seems to me to be directly relevant to the issues which the Applicants wish to raise in the proceedings. Disclosure of its contents would do minimal, if any, harm to ASIC's investigation in terms of revealing ASIC's methods of investigation, where the investigation may be going or otherwise. On balance, the public interest in the administration of justice requires that ASIC produce this document to the Applicants. Document Number 9 This is a three page email. It seems to me to be directly relevant to the issues which the Applicants wish to raise in the proceedings. Disclosure of its contents would do minimal, if any, harm to ASIC's investigation in terms of revealing ASIC's methods of investigation, where the investigation may be going or otherwise. On balance, the public interest in the administration of justice requires that ASIC produce this document to the Applicants, Provided However that the second major heading on the second printed page of the email and the five lines appearing thereunder may be masked out and an edited copy of the document produced. Document Number 10 This is a six page document commencing at the foot thereof with an email sent at 8.35 am on 22 March 2005 which was apparently forwarded to other parties at 2.44 pm on 1 April 2005 and 3.16 pm on 1 April 2005, a copy email sent at 6.24 am on 1 April 2005, an email sent at 6.56 pm on 1 April 2005 which was apparently forwarded to others at 9.05 pm on 1 June 2005 and an email sent at 9.00 am on 2 June 2005, a copy whereof appears to have been forwarded to others at 9.42 am on 2 June 2005. Whilst the email attributed to 9.00 am on 2 June 2005 may be of marginal significance, it seems to me that the other communications are directly relevant to the issues which the Applicants wish to raise in the proceedings. Disclosure of their contents would do minimal, if any, harm to ASIC's investigation in terms of revealing ASIC's methods of investigation, where the investigation may be going or otherwise. On balance, the public interest in the administration of justice requires that ASIC produce the whole of the document to the Applicants. Document Number 11 This is a six page document commencing with the 8.35 am email of 22 March referred to in Document Number 10. It contains the same succession of emails as Document Number 10. However, it concludes with an email sent at 10.16 am on 2 June 2005 after the email sent at 9.05 pm on 1 June 2005. The email sent on 2 June 2005 at 10.16 am appears to be a final version of what was the subject of the earlier email contained in Document Number 10 of 9.00 am on 2 June 2005. I note that in Document Number 10 the word "draft" has been added in manuscript form above the 2 June 2005 at 9.00 am email. As with Document Number 10 the final email of 2 June 2004 at 10.16 am is of marginal relevance. However my observations in relation to the balance of the document are as for Document Number 10. On balance, the public interest in the administration to justice requires that ASIC produce the whole of this document to the Applicants. 45 I will entertain short written submissions of the parties on the question of costs of the motion. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.